Results tagged “DC Circuit” from The Federal Criminal Appeals Blog

November 18, 2014

Short Wins - the Dramatic Catch-Up Edition

And, after a really long break, we're back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week - it's a great case that bears a close read.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not "contribute" to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner

2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons

3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant's motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang

4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant's status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan

5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant's profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee

6. United States v. Bui, Third Circuit: Appellant's petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the "safety valve." Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer

7. United States v. Paladino, Third Circuit: Appellant challenged the district court's judgment revoking Appellant's supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett

8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers' compensation benefits and was sentenced to 16 months' imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers' compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson

9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant's sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court--that is, the amount attributable only to him and not to the conspiracy as a whole--and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme's investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad

11. Swisher v. Porter Co Sheriff's Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant's case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant's prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant's prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury's confusion.

Defense Attorney: Charles M. Sevilla

17. Sessoms v. Grounds, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner's statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner's.

Defense Attorney: Eric Weaver

18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner's conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act's firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler

19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link

20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings' sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn't clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs

21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher

22. United States v. Castro-Ponce, Ninth Circuit: Appellant's sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant's false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton

23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant's criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant's sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby

24. United States v. Hernandez, Ninth Circuit: As part of Appellant's sentence for illegal reentry, the district court added a sentencing enhancement for Appellant's prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin

25. United States v. Mavromatis, Ninth Circuit: Appellant's conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren

26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court's failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger

28. Williams v. Swarthout, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward

29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant's contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow

30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were "of" the depository banks.

Defense Attorney: Ty Gee

31. United States v. Hite, DC Circuit: Appellant's conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant's conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant's lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina

November 14, 2014

The D.C. Circuit Makes It Harder to Prosecute Someone For Enticing A Minor

Editor's Note - We've never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit's recent decision in United States v. Hite that I'm very pleased to publish here.

If you're looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I'd be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon's, not those of his office or anyone else. Except where he's quoting the D.C. Circuit - those are the opinions of the Circuit.

D.C. CIRCUIT ISSUES IMPORTANT DECISION REGARDING SCOPE OF ONLINE ENTICEMENT STATUTE, 18 U.S.C. § 2422(b)

The federal statute criminalizing the online enticement of minors, 18 U.S.C. § 2422(b), contains a severe penalty. Individuals who violate § 2422(b) -- even first time offenders -- are subject to a ten-year mandatory minimum and a life maximum. Congress legislated this severe penalty to deal with a particular kind of offender: the online predator who uses the Internet to reach into a home and befriend a child for sexual purposes.

And yet, the above scenario represents only a small fraction of prosecutions the government brings under § 2422(b). What one sees equally often is undercover law enforcement agents aggressively pursuing defendants who are using the Internet to find other consenting adults for sexual encounters. The agents will contact these individuals over the Internet and begin flirting, failing to even reveal the purported age of the minor they are portraying until late in the communications. In addition, there are numerous cases involving defendants who are talking about sex with minors with someone they believe to be another consenting adult, with no clear intention of ever doing anything in the real world. Neither of the foregoing scenarios is what Congress envisioned when it enacted § 2422(b) and included its severe penalty.

For anyone defending enticement cases in federal court, the D.C. Circuit's opinion in United States v. Hite, DC, --- F.3d ---, 2014 WL 5343626 (D.C. Cir. Oct. 21, 2014) , should be a welcome development. In Hite, the court brought badly needed clarity to the proper use of 18 U.S.C. § 2422(b). And more importantly, the court took an important step towards eliminating the large number of dubious yet life-ruining prosecutions the government brings under this statute.

In Hite, Dr. Hite, an anaesthesiologist, was convicted of enticing a minor based on communications he had with an undercover police officer who was pretending to be another adult with sexual access to two minors. As one sees frequently in such cases, the undercover office aggressively pursued Dr. Hite, encouraging him to travel from Richmond, Virginia (where Dr. Hite lived) to Washington, D.C., where the undercover purported to live, for a sexual encounter with the undercover and the fictitious minors. Although the two adults engaged in numerous appalling communications, Dr. Hite at no time accepted the undercover officer's invitation to travel to D.C. to meet with him. And yet, based exclusively on Dr. Hite's communications with a person he believed to be another adult, Dr. Hite was convicted under § 2422(b) and sentenced to 22 years in prison. Again, the court imposed that lengthy sentence notwithstanding the fact that Dr. Hite: (1) never communicated with someone he believed to be a minor; and (2) never went anywhere with the intention of engaging in an illegal sexual encounter.

In reversing Dr. Hite's conviction, the D.C. Circuit clarified the scope of § 2422(b) in several important ways. As an initial matter, the court rejected Dr. Hite's argument that a defendant must communicate directly with a minor (or a person he believes to be a minor) in order to violate the statute. Dr. Hite (here) and FPD (as amicus, here) had argued that the statute only applied to those who communicate directly with minors. While the D.C. Circuit held against Dr. Hite on this point, this argument is strongly supported by the plain text of the statute. It therefore remains an argument that practitioners should preserve in the district court and on appeal, as the Supreme Court may ultimately adopt this position when it finally addresses the scope of § 2422(b).

The good stuff starts with the paragraph beginning "By the same token, we reject the Government's argument that § 2422(b) does not require the defendant to attempt to transform or overcome the minor's will." Id. at *6. Here, the court definitively rejected the government's theory that a defendant violates the statute merely by "arranging" with another adult to have underage sex (which the jury instructions in Hite also described as "persuad[ing] another adult to cause a minor to engage in sexual activity"). In the critical paragraph rejecting the district court's jury instruction, the court stated:

In the case at bar, the jury instructions defining the requisite intent did not fully comport with the interpretation of the statute we announce today. Over defense objection, the District Court instructed the jury that "[d]irect communications with a child" are not necessary for a jury to find a violation of § 2422(b), and that the "government must only prove that the defendant believes that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity." The instructions further provided that "the government must prove only that the defendant intended to persuade, or induce, or entice, or coerce a minor to engage in illegal sexual activity, or intended to persuade an adult to cause a minor to engage in unlawful sexual activity." As discussed supra, the preeminent characteristic of the conduct prohibited under § 2422(b) is transforming or overcoming the minor's will, whether through "inducement," "persuasion," "enticement," or "coercion." Although the word "cause" is contained within some definitions of "induce," cause encompasses more conduct; simply "to cause" sexual activity with a minor does not necessarily require any effort to transform or overcome the will of the minor. Similarly, rather than focusing on transforming or overcoming the will of another person, "arrange" means to "put (things) in a neat, attractive or required order" or to "organize or make plans for (a future event)." Thus although much of the instruction was correct, the additional language that the "government must only prove that the defendant believe that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity" was erroneous.
Id. at *9 (citations omitted) (emphasis in original).

Notably, the above holding creates a clear circuit split between the D.C. Circuit and the Eleventh (e.g., United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004)), and probably more (see, e.g., United States v. Douglas, 626 F.3d 161, 165 (2d Cir. 2010) (noting that the required "assent might be obtained, for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity")). In addition, the Hite court's plain meaning interpretation of the statute's verbs "persuade," "induce," "entice," and "coerce" will help defendants not only in cases involving an "adult intermediary," such as Hite itself, but also in those cases where the defendant is communicating directly with someone he believes to be a minor. In either situation, the jury must find that the defendant is "seek[ing] to transform or overcome the will of a minor," and not merely agreeing or even arranging to have sex.

The Hite court's rejection of the government's "arranging" theory of § 2422(b) - particularly if accepted in other Circuits, or even better by the Supreme Court - will be very helpful to those litigating enticement cases with relatively mild facts. The reality of these cases is that while "arranging" for underage sex sounds bad enough in the abstract, the ways in which U.S. Attorney's Offices around the country are utilizing this statute demonstrate the injustice of applying § 2422(b) and its 10-year mandatory minimum to "arrange" situations. This statute should not apply where undercover law enforcement agents have aggressively pursued a defendant who, left to his own devices, would not have sought out a minor for sex. When measured against the human cost to the defendant and his loved ones, it is exceedingly difficult to see how anyone is benefitting from such prosecutions, except perhaps for the Internet Crimes Against Children (ICAC) task forces, whose budgets are dependent on the number of cases the task forces generate. The Hite opinion should help bid good riddance to these dubious cases, which are not what Congress had in mind when it enacted § 2422(b) and included its 10-year mandatory minimum.

The Appellant's brief is here and the Federal Public Defender's amicus brief in support of the appellant is here.

July 22, 2014

Short Wins - the Shameless Promotion Edition

Remember back with this blog was more than just Short Wins? Remember when there were long and loving descriptions of cases?

I still aspire to get back to that vision for the blog - that was fun. Seriously, look for more long write-ups soon. I've been distracted by writing for Above the Law (here is a link to my columns (I particularly like the one about cannibalism)) and my day job as a practicing lawyer.

But, if you're jonesing for those long write-ups again, thanks to the good people at James Publishing, you can now read them in one handy-dandy book. It has the jazzy title Criminal Defense Victories in the Federal Circuits. Or you could just read the archives.

In other self-promoting news, the ABA's annual list of best blogs is open for nominations. Here's the link. It would be nice if you'd say something nice about this blog, but don't feel like you have to.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Mejia, Third Circuit: The court vacated Appellant's sentence after being convicted of reentry after deportation. The Third Circuit, however, used the opportunity to change its current law and now requires a party to object to procedural errors during the sentencing proceeding once that error is evident, otherwise it is not preserved. Because the new rule cannot apply retroactively, Appellant's case was remanded.

Defense Attorney: Robert Epstein

2. Hurst v. Joyner, Fourth Circuit: The district court improperly denied a petition for habeas corpus. The Fourth Circuit remanded for an evidentiary hearing where a juror communicated with her father during the penalty phase of Appellant's capital murder trial. At her father's suggestion, the juror read a section in the Bible about "an eye for an eye," and then voted in favor of the death penalty the following day. An evidentiary hearing was necessary to determine whether that communication had a substantial and injurious effect or influence on the jury's verdict.

Defense Attorney: Robert Hood Hale

3. United States v. Garrett, Sixth Circuit: Appellant was sentenced to 151 months' imprisonment after pleading guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine. Although that sentence was at the bottom of Appellant's guidelines, the Sixth Circuit determined that Appellant was eligible for resentencing because his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Appellant's initial Guidelines range was 151 to 188 months, but after the Guidelines Amendment, it would be 120 to 137 months.

Defense Attorneys: Bradley R. Hall and James Gerometta

4. Townsend v. Cooper, Seventh Circuit: Appellant sued a number of officials at his correctional facility and the district court granted summary judgment in favor of the Appellees. The court determined, taken in the light most favorable to Appellant, that Appellant raised genuine issues of material fact about whether he had a liberty interest in avoiding transfer to more restrictive prison conditions, which would require procedural due process. Because there was not appropriate notice or an opportunity to be heard, the district court's grant of summary judgment was vacated and remanded.

5. United States v. Harden, Seventh Circuit: Appellant pled guilty to possession with intent to distribute cocaine and Appellant agreed to allow a magistrate judge perform he plea colloquy. Taking and accepting guilty pleas in felony cases is not one of the enumerated duties of magistrate judges and was determined by the Seventh Circuit to be both important and dispositive. Therefore, magistrate judges are not authorized to accept guilty pleas in felony cases, even if both parties would consent.

6. United States v. Sheth, Seventh Circuit: After pleading guilty to health care fraud, the district court entered an order of criminal forfeiture for cash and investment accounts then valued at about $13 million plus real estate and a vehicle. The forfeited assets would be credited against his $12,376,310 restitution. The government then sought further assets to apply to restitution and the district court ordered Appellant to turn over those assets. The turnover order was vacated and remanded for discovery and an evidentiary hearing to determine whether the first set of forfeited assets was sufficient to cover the restitution order.

7. United States v. Doering, Eighth Circuit: Appellant pled guilty to tampering with evidence and was sentenced to 90 months' imprisonment and ordered to pay $45,382.88 in restitution. The restitution order was vacated and remanded because Appellant's plea agreement did not list, as required, that an offense listed in the Mandatory Victims Restitution Act gave rise to the plea agreement. Without that specific, mandatory term, restitution under the MVRA was unauthorized.

8. United States v. Howard, Eighth Circuit: The order of restitution against Appellant was vacated because the calculation improperly included losses from dates preceding the relevant conduct of Appellant's extortion conviction. The losses arose outsides of the dates listed in the indictment.

9. United States v. Nguyen, Eighth Circuit: Appellant's conviction for knowingly shipping, transporting, receiving, possessing, selling, and distributing contraband cigarettes was reversed because there was insufficient evidence. Specifically, the government had no evidence that Appellant was aware of any applicable sales taxes on the cigarettes; the government had no evidence as to Appellant's knowing violation of the statute.

10. United States v. Thomas, Eighth Circuit: Appellants was sentenced to 120 months' imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine. The case was remanded because the district court's oral sentence was ambiguous about the sentencing guidelines range on which the Appellant's sentence as based. On appeal, that ambiguity made it impossible to determine if the district court committed procedural error.

11. United States v. Gonzalez, Ninth Circuit: The Ninth Circuit remanded Petitioner's case with instructions to grant the writ of habeas corpus based on the prosecution's failure to disclose Brady material that would have impeached the credibility of a critical witness. The California Court of Appeal's decision that Petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The court held that the California Court of Appeal's requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law.

Defense Attorney: John Lanahan

12. Wood v. Ryan, Ninth Circuit: The district court improperly denied Appellant's request for a preliminary injunction delaying his execution, which was scheduled for July 23, 2014. Appellant presented claimed that Department of Corrections violated his First Amendment rights by denying him information regarding the method of his execution. Because Appellant presented serious questions to the merits of the claim, and because the balance of hardships tips in his favor, the preliminary injunction should have been granted

13. United States v. Charles, Eleventh Circuit: Appellant pled guilty to charges relating to a conspiring to use unauthorized access devices. Appellant's sentence was vacated because the district court committed legal error when it included a two-level sentence increase for trafficking in unauthorized access devices (for example, a prepaid debit card). Because Appellant was convicted of aggravated identity theft as well, the district court was precluded from considering any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.

14. United States v. Estrella, Eleventh Circuit: As part of his sentence for illegal reentry, Appellant's received a sentencing enhancement for a crime of violence based on his prior conviction for wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle. Under the categorical approach, the Eleventh Circuit determined that a conviction for that crime does not necessarily involve proof of the use, attempt, or threat of force. Therefore, the crime of violence enhancement was improper.

15. Bahlul v. United States, D.C. Circuit: Hamdan II held that there cannot be retroactive prosecution for conduct committed before the Military Commissions Act of 2006 unless that conduct was already prohibited under existing U.S. law as a war crime triable by a military commission. But that understand was contrary to the statutory wording, which allowed for the prosecution of any crimes. The D.C. Circuit, applying an ex post facto analysis, determined that Appellant's conviction for providing material support for terrorism and solicitation of others to commit war crimes were not previously offenses that were triable by a military commission, so the convictions were vacated.

Defense Attorneys: Michel Paradis, Mary R. McCormick, and Todd E. Pierce

April 7, 2014

Short Wins - The "the victims a person is convicted of defrauding have to be the same ones as the ones he was indicted for defrauding" edition

Last week was a busy week in the federal circuits. There's a lot there to be interested in, especially if you have a case at the intersection of mental health issues and the law.

If, however, your interests are a bit more prosaic, you might want to read United States v. Ward. There, the person accused was convicted of defrauding different people than the indictment alleged he defrauded.

Amazing stuff.

To the victories!

1155650_berlin_siegessule.jpg1. Davis v. Humphreys, Seventh Circuit: The Seventh Circuit indicated that mental incompetence can justify tolling the statute of limitations for a motion under 28 U.S.C. §2244 in certain situations. Because the district court did not conduct proper fact finding to determine Appellant's mental limitations here, the Court chose to remand and did not yet articulate the standard it will use in these situations.

2. United States v. DeBenedetto, Seventh Circuit: The district court's commitment order was vacated and the case remanded for further proceedings because the hearing and written findings were inadequate. To require a person to undergo involuntary mental health treatment, there are four findings that the district court must make, but failed to do so. On remand, the district court is required to make explicit findings about each of the factors.

3. United States v. Long, Seventh Circuit: One Appellant must be resentenced under the Fair Sentencing Act, which is applicable to any person sentenced after the Act was enacted, regardless of when the underlying conduct occurred. The district court had applied the pre-FSA mandatory minimum based on findings which would not be enough under the Fair Sentencing Act.

4. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction for one count - the distribution of heroin resulting in death - based on improper jury instructions. The case was remanded to the district court to enter a conviction for the lesser-included offense of distribution of heroin because the evidence was insufficient to support a conviction for distribution resulting in death.

5. United States v. Emly, Eighth Circuit: Appellant was convicted of one count of receipt of materials involving sexual exploitation of children and three counts of possession of materials involving the sexual exploitation of children. The three possession counts are multiplicitous - the possession of copies of several different files on separate devices constitutes only a single violation. The case was remanded with instructions to vacate all but one of the possession charges.

6. Albino v. Baca: The Court held that the appropriate procedural device for a pretrial determination of whether administrative remedies have been exhausted under the Prisoner Litigation Reform Act is a motion for summary judgment. Summary judgment should have been granted for Appellant because he satisfied the exhaustion requirement because no administrative remedies were available at the jail where Appellant was confined.

Defense Attorney: Andrea Renee St. Julian

7. United States v. IMM, Juvenile Male, Ninth Circuit: Appellant's conviction for child sex abuse was reversed and remanded because Appellant was not Mirandized and was in custody when he made inculpatory statements. This violation of Appellant's Fifth Amendment requires suppression of the statements.

Defense Attorney: Jill E. Thorpe

8. United States v. Ward, Ninth Circuit: Appellant's convictions for two counts of aggravated identity theft were reversed. The district court improperly allowed the jury to convict Appellant of stealing identities of victims who were not the specific victims named in the indictment.

Defense Attorney: Davina T. Chen

9. United States v. Feliciano, Eleventh Circuit: Appellant was convicted of bank robbery charges and use of a firearm. There was insufficient evidence of one gun charge. The evidence was that an accomplice never saw Appellant with a gun and knew Appellant did not have a gun at one robbery. This required reversal of the conviction.

10. United States v. Grzybowicz, Eleventh Circuit: Appellant's conviction for distribution of child pornography. The court determined that distribution required delivery or transfer to another person and Appellant had only emailed images to himself. Because the evidence was insufficient to convict Appellant on this charge, the conviction was vacated and the case remanded for resentencing.

11. United States v. Clark, D.C. Circuit: Appellant was convicted of bank and wire fraud. The district court applied Sentencing Guidelines, which were not published until after the crimes. This retroactive application violated the Ex Post Facto Clause and required remand for resentencing.

Defense Attorneys: Jessica L. Ellsworth, Peter S. Spivack, and Matthew J. Iaconetti

March 28, 2014

Short Wins - The Smurfing Edition

The big news in this edition of Short Wins is United States v. Abair - a simply crazy Seventh Circuit.

I already wrote about it for a general legal audience on Above the Law (Inspector Javert Goes Smurfing in Indiana) - for our purposes, the legal issue is whether she was appropriately crossed on statements in her tax returns or student loan applications.

I had a case years ago where the AUSA and I litigated whether he could use similar statements in cross if my client testified. We lost. Happily, we weren't able to appeal the decision, but it's freakin' insane the way this stuff comes in sometimes. Abair is a nice step in moving the law in the right way.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Diaz-Rodriguez, First Circuit: Appellant was convicted at trial of aiding and abetting interference with commerce by threats of violence and one count of using a firearm during the commission of a crime of violence. Those convictions were vacated because Appellant was denied his Sixth Amendment Right to Counsel when it forbade him from retaining new counsel during trial without inquiring into his conflict with his present counsel.

Defense Attorney: Rafael F. Castro Lang

2. United States v. Abair, Seventh Circuit: During Appellant's trial for structuring financial transactions in order to evade federal reporting requirements, the prosecutor cross-examined Appellant about alleged false statements on a tax return and student financial aid applications. Because the government lacked a good faith basis for believing Appellant had lied on those documents, the Seventh Circuit reversed the conviction and remanded for a new trial. The Seventh Circuit determined that the information elicited during that cross-examination was prejudicial and harmful error.

3. United States v. Cabrera-Gutierrez, Ninth Circuit: The Court withdrew its June 3, 2013 Opinion and filed this Amended Opinion. The Court held that the district court erred in sentencing Appellant as a Tier III sex offender based on a prior conviction under an Oregon statute. The district court improperly applied the categorical approach to determine how that prior conviction would impact Appellant's sentencing enhancement, so Appellant's sentence was vacated.

Defense Attorney: Rebecca L. Pennell

4. United States v. Cortes, Ninth Circuit: Appellant was tried for drug conspiracy charges after he was arrested during an undercover reverse sting operation. The conviction was reversed because the district court gave the jury an improper jury instruction on an entrapment defense. In giving the jury instruction, the district court erred in excluding that drugs or any profit from the sale of drugs could be a basis for inducement.

Defense Attorney: Gary P. Burcham

5. United States v. Montes-Ruiz, Ninth Circuit: The district court erred in sentencing Appellant by ordering a sentence which was to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. Since it is impermissible to impose a sentence which will run consecutively to a hypothetical sentence, Appellant's sentence was vacated and the case remanded for resentencing.

Defense Counsel: Devin Burstein

6. United States v. Peyton, D.C. Circuit: The trial court admitted evidence gathered from Appellant's apartment as a part of two separate warrantless searches. Because the first warrantless search was not lawfully permitted, the convictions were vacated and remanded.

December 30, 2013

Short Wins - Last Post Of The Year Edition

It's generally a slow time of year between Christmas and New Year's, but the federal circuits have been busy. But who wouldn't want to start the year with a remand in a criminal case (other than the government)?

Since we were off last week, here are the wins from the last two weeks in the federal circuits.

Happy New Year!

To the victories:

1155650_berlin_siegessule.jpg1. U.S. v. Duron-Caldera, Fifth Circuit: Appellant was convicted of illegal reentry. The conviction was vacated and the case remanded because the government should not have been allowed to admit an affidavit by the appellant's grandmother. The use of the affidavit violated the Confrontation Clause.

2. U.S. v. Doss, Seventh Circuit: Appellant was convicted and sentenced for a variety of identity fraud and identity theft charges. Finding that a sentencing enhancement was improperly applied, the Seventh Circuit vacated the sentence.

3. U.S. v. DeJarnette, Ninth Circuit: DeJarnette appealed his conviction for failure to register as a sex offender. The Ninth Circuit reversed the conviction because the Attorney General has not validly specified if the Sex Offender Registration and Notification Act (SORNA) applied to those already under sex offender restrictions when SORNA was enacted.

Defense Attorney: Mark D. Eibert

4. U.S. v. Timmann, Eleventh Circuit: Appellant was convicted of possession of a firearm by a convicted felon. On appeal, the Eleventh Circuit vacated the convictions because the trial court improperly denied the Appellant's motion to suppress evidence collected from a warrantless search. Because there was no urgent, ongoing emergency, the emergency aid exception to the warrant requirement should not have applied, and therefore the evidence collected should have been suppressed.

5. U.S. v. Pole, D.C. Circuit: Appellant was convicted of five counts of wire fraud and one count of theft. Because Appellant's claim for ineffective assistance of counsel was colorable, they were remanded. Further, because the trial court did not make the proper factual findings regarding restitution, the restitution order was vacated and remanded.

Defense Attorneys: Beverly G. Dyer, A.J. Kramer, and Tony Axam, Jr.

6. U.S. v. Rushton, Seventh Circuit: Appellant pled guilty to one count of mail fraud and one count of money laundering and received a 4-level enhancement at sentencing for commodity pool operator fraud as well as a 2-level enhancement for abuse of a position of trust. The Seventh Circuit reversed and remanded because the abuse of trust enhancement is barred if the enhancement for being a commodity pool operator applies; therefore, Appellant's sentence was not calculated correctly.

7. U.S. v. Caceres-Olla, Ninth Circuit: After pleading guilty to unlawful reentry into the United States, Appellant was sentenced to 46 months in prison. The court applied a sentencing enhancement based on a prior crime. However, the Ninth Circuit held that a prior felony conviction under Florida Statute §800.04(4)(a) does not qualify as a crime of violence and therefore vacated and remanded for resentencing.

8. U.S. v. Lin, Ninth Circuit: Appellant was convicted under 18 U.S.C. §1546(a) for fraud and misuse of visas, permits, and other documents. The panel from the Ninth Circuit remanded because §1546 does not prohibit the mere possession of an unlawfully obtained driver's license issued by the Commonwealth of the Northern Mariana Islands. Instead, §1546 targets different documents, but the government did not prove that Appellant possessed any such document.

Defense Attorney: Mark B. Hanson

9. U.S. v. Eiland, D.C. Circuit: Eiland and Miller were convicted of various narcotics-related offenses. On appeal, the D.C. Circuit vacated Miller's conviction for participation in a continuing criminal enterprise because the government failed to produce sufficient evidence that Miller acted as an organizer, supervisor, or manager to five or more individuals. Thus, the government did not establish all elements of the crime. The Court also vacated the fine imposed on Eiland and remand for reconsideration of that portion of the sentence because the district court vacated the conviction for which the fine was imposed.

Defense Attorneys: Eric H. Kirchman, Kenneth M. Robinson, Dennis M. Hart, and Frederick Miller

10. U.S. v. Miller, D.C. Circuit: This case is related to the above case, U.S. v. Eiland. In this related opinion, the D.C. Circuit vacates a number of convictions because the district court's responses to jury notes impermissibly interfered with the jury's independent role as fact-finder. The trial court abused its discretion by directing the jury to evidence previously unidentified by the jury as supporting a charge in the indictment. The Court also vacated Thomas' life sentences for narcotics conspiracy and RICO conspiracy and remanded for resentencing because those sentences violated Apprendi.

Defense Attorneys: Dennis M. Hart and David B. Smith

December 11, 2013

The D.C. Circuit Holds That A Judge In D.C. Cannot Authorize A Bug in Maryland

The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn't get any evidence on him that way.

The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug - a little microphone - in his truck.

The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).

bug-1411396-m.jpgThe bug picked up some conversations, not in code, that strongly suggested Mr. Glover is a drug dealer. He was convicted, and, on appeal, challenged the validity of the wire tap because it was authorized by a federal judge in D.C. for a car in Maryland.

The D.C. Circuit, in an opinion by Senior Judge Silberman, reversed, in United States v. Glover.

Eighteen U.S.C. section 2518(3) allows a federal district judge to:

"authoriz[e] or approv[e] interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."

Does this language let a federal judge in Washington, D.C. authorize a wire tape for a wire that's not in Washington, D.C.?

That parenthetical is not a model of clarity. Here's how the D.C. Circuit parses it:

To be sure, the parenthetical phrase is somewhat ambiguous. It seems reasonable to read the words "such jurisdiction" in the phrase as referring back to the jurisdiction in which the judge is sitting; i.e., in this case, the District of Columbia, since the provision mentions no other jurisdiction. It is also possible that the phrase, by implication, refers to the jurisdiction in which the mobile interception device is installed.

So, could the parenthetical be read to say that a federal judge in D.C. could authorize the interception of conversations in Maryland for an investigation being run by the U.S. Attorney's Office in DC? The D.C. Circuit says no - it doesn't work with the rest of the language of the section:

Under either reading, the parenthetical makes clear that a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge's jurisdiction. A contrary reading would render the phrase "authorized by a Federal court within such jurisdiction" completely superfluous.

The government has a response to this.

It argues that:

The government points to a handful of cases in which courts have found that an "interception" under Title III takes place at both the location of the listening post and at the location of a tapped phone. The government argues that in light of these cases, we should recognize that an issuing court has the power to authorize covert, trespassory entries onto private property, anywhere in the country, for purposes of placing surveillance equipment. The only jurisdictional limitation the government acknowledges is that the listening post must be located in the issuing court's jurisdiction.

It's like the argument the government frequently makes about wire fraud venue - any place that the wire goes through is an appropriate location for venue. If you email from California to Nevada, but the email goes through a server in Virginia, the government has argued that you can be tried in Virginia. Though it's a little odder here - the government, of course, controls where the listening post sits.

The D.C. Circuit doesn't go along with the government here - noting that the "listening post" language is just not in the statute.

Finally, the government asks the Court to ignore the jurisdictional problem because of the "good faith" exception to the warrant requirement. The D.C. Circuit gives this argument short shrift:

The government's last refuge is a plea that we recognize the government's "good faith" and, therefore, import a good faith exception to Title III's remedy of suppression. The Supreme Court has done so regarding Fourth Amendment violations, see United States v. Leon, 468 U.S. 897, 911 (1984), where there is no explicit textual remedy. Here, of course, Congress has spoken: The statute requires suppression of evidence gathered pursuant to a facially insufficient warrant.

The convictions were reversed, and the wiretapped conversations are suppressed.

November 11, 2013

Short Wins - Three Wins

Happy Monday!

We have three short but good cases from the circuits from last week. I think my favorite is U.S. v. Glover, a nice suppression case. Congrats to Adam Kurland for the win.

To the victories!

1155650_berlin_siegessule.jpg1. Huff v. U.S., Sixth Circuit: Appellant entered a plea agreement, pleading guilty to various fraud and identity theft charges. The parties also agreed to use the November 1, 2002 Sentencing Guideline Manual but the court used a later version, resulting in a higher sentencing range. When Appellant first appealed, his attorney talked him into dismissing and the district court rejected Appellant's ineffective assistance of counsel claim without an evidentiary hearing. The Sixth Circuit reverses and remands because a hearing was necessary to properly evaluate the ineffective assistance of counsel claim.

Defense Attorney: Michael M. Losavio

2. U.S. v. Bruguier, Eighth Circuit: After a jury trial, Appellant was convicted of sexual abuse, burglary, aggravated sexual abuse, and sexual abuse of a minor and sentenced to 360 months imprisonment. Appellant argued that the jury instructions for sexual abuse omitted a mens rea element. Agreeing with Appellant, the Eighth Circuit remanded for a new trial on the sexual abuse count and vacated Appellant's sentence.

3. U.S. v. Glover, DC Circuit: Glover was convicted of conspiring to possess and distribute cocaine. A warrant was issued in D.C. but allowed the police to place an electronic bug on Glover's truck which was parked in Maryland. The D.C. Circuit found that this warrant was facially insufficient and the evidence obtained pursuant to it should have been suppressed. Because the district court did not suppress the evidence, the conviction is reversed.

Defense Attorneys: Adam H. Kurland and Robert S. Becker

July 16, 2013

Not So Short Wins - The Catch Up Edition

Dear Readers,

Apologies for posting so sparsely lately. Between covering the end of the Supreme Court term for Above the Law (see posts here or here if you'd like) and this day job as a lawyer, I've been remiss in keeping you up to date on what's what in the circuits.

Today, please find the Short Wins for the last two weeks. My personal favorite is United States v. Huizar-Velazquez because there simply isn't enough law on criminal importation of wire hangars.

To the victories!

1155650_berlin_siegessule.jpg1. In re Sealed Case, D.C. Circuit: Appellant pled guilty to possession with intent to distribute crack cocaine. At the time, he was subject to a 20-year mandatory minimum sentence. He provided substantial assistance to law enforcement, and the government asked the court to sentence appellant below the mandatory minimum. The court did so. Notwithstanding the fact that appellant was sentenced below the mandatory minimum, he was eligible for a sentence reduction under the recent amendments to the Sentencing Guidelines. Therefore, the case was remanded for the district court to consider whether a sentence reduction is warranted.

2. United States v. Cotton, Fifth Circuit: Drugs were seized during a search of appellant's car during a traffic stop. Because appellant limited his consent to a search of his luggage only - where the drugs were not located - the officer's prolonged and more extensive search of the entire car violated appellant's Fourth Amendment right. The drugs should have been suppressed as fruits of the unlawful search. Appellant's conviction was vacated and the case remanded.

3. United States v. Huizar-Velazquez, Ninth Circuit: Appellant pled guilty to importing wire hangers without paying the proper duties. At sentencing, the court applied the wrong sentencing guideline - it should have applied the guideline addressing evasion of import duties by smugglers trying to fool, rather than corrupt, government officials. Similarly, the court calculated the loss amount under the wrong guideline. For these reasons, appellant's sentence was vacated and the case remanded for resentencing.

4. United States v. White Eagle, Ninth Circuit: Appellant was convicted of the following offenses, among others: conspiracy to convert tribal credit program proceeds (count I); theft and conversion from an Indian Tribal Organization (count II); concealment of public corruption (count IV); and public acts affecting a personal financial interest (count V). Counts I and II were reversed because the alleged object of the conspiracy - modifying a loan - was not criminal. Therefore, there was no conspiracy. Count IV was reversed because the government did not show that appellant violated a specific duty to report credit program fraud. Count V was reversed because the connection between appellant's alleged financial interest and a Bureau of Indian Affairs administrative officer's fraudulent loans was remote and speculative. Further, the court erred at sentencing in calculating the loss amount, requiring remand.

5. Gonzalez v. United States, Second Circuit: Appellant pled guilty to narcotics and bribery crimes and was sentenced to 210 months in prison. The district court denied appellant's 28 U.S.C. § 2255 motion to vacate his conviction and sentence. In the motion, appellant argued that his attorney provided ineffective assistance in connection with the guilty plea and sentencing. Because appellant demonstrated that the attorney's ineffective assistance was prejudicial, the district court's order dismissing appellant's motion was vacated and the case remanded for resentencing with the assistance of competent counsel.

6. United States v. Nicholson, Tenth Circuit: Appellant pled guilty to three drug and weapons-related charges after the district court denied his motion to suppress evidence found in his car after a traffic stop. Because the officer pulled appellant over for making a turn that was not illegal, the officer violated the Fourth Amendment. No other legal basis existed for stopping appellant and the good faith exception did not apply. For these reasons, the denial of appellant's motion to suppress was reversed and the case remanded with directions to vacate his convictions.

7. United States v. Thompson, D.C. Circuit: Appellant was found guilty of drug charges. Because the record was insufficient to resolve appellant's claim that his attorney was ineffective in failing to inform him of plea offers from the prosecution before the offers expired, the case was remanded to the district court for whatever proceedings are necessary to determine whether appellant was denied his right to effective assistance of counsel.

July 5, 2013

Short Wins - Fourth of July Week Edition

Today's featured case is United States v. Hampton for a few reasons.

First, it's from the DC Circuit, and my office is in DC - our Circuit's pro-defendant decisions are particularly exciting (to me).

Second, it involves law enforcement agents offering expert testimony. Law enforcement testimony is massively frustrating - it feels, at times, that there no bounds to what an FBI Agent will testify about.

Third, it comes out of a retrial. Who doesn't love a retrial?

Though, I should say, there are plenty of other great cases in this week's Short Wins.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Buffer, Sixth Circuit: The district court erred in denying appellant's motion to suppress evidence gathered from a search warrant and arrest because it incorrectly determined that (1) the warrant was supported by probable cause and (2) even if the warrant wasn't supported by probable cause, the good faith exception to the warrant requirement applied. Because of these errors, the appellate court reversed the order denying appellant's motion, vacated appellant's conviction, and remanded for further proceedings.

2. United States v. Davis, Fourth Circuit: Appellant received a consolidated sentence for several state law violations. The court counted the sentence as at least "two prior felony convictions" under the Sentencing Guidelines career offender enhancement provision. Because appellant's consolidated sentence was a single sentence for purposes of the career offender enhancement, the court vacated appellant's sentence and remanded for resentencing.

3. United States v. Galpin, Second Circuit: Appellant moved to suppress evidence of child pornography. The court agreed with appellant that the search warrant that led to the discovery of this evidence was overbroad and that the officers lacked probable cause to conduct it. Nevertheless, the court ruled that the warrant was severable and that the images found would have been in plain view during a properly limited search. This ruling was error: because the record as to whether the warrant was severable and whether the images were in plain view was deficient, the trial court's order denying the motion to suppress was vacated and the case remanded for further proceedings.

4. United States v. Hampton, D.C. Circuit: Appellant was convicted of drug conspiracy charges after a mistrial and re-trial. At the re-trial, the district court allowed an FBI agent to give lay-opinion testimony about his understanding of recorded conversations played for the jury. Because the court failed to enforce the boundaries for this type of evidence in Federal Rule of Evidence 701, the court denied the jury the information it needed to assess the agent's interpretations. Appellant's conviction was vacated.

5. United States v. Tien, Second Circuit: Appellant pled guilty to bribery of a public official and forgery of a passport at separate conferences held 16 months apart. In both pleas, the court plainly erred when it violated Federal Rule of Criminal Procedure 11, which sets forth the requirements the court must follow in determining whether a plea is voluntary. Because the pleas weren't knowingly and voluntarily entered, both were vacated and the case remanded.

April 15, 2013

Short Wins - Is It Unseemly That DOJ Asks For New Prosecutors While Federal Defenders Are Being Laid Off?

Three opinions are in this week's "short wins" - on restitution calculation, competency in a bank robbery case, and the Fair Sentencing Act.

And, in federal public defender budget news, the New York Times had an editorial last week calling for more sensible funding of the government services required by the Constitution. Here's the best bit:

The right to counsel is already badly battered in state courts, largely because most states grossly underfinance the representation of impoverished defendants. Indigent defense in federal criminal cases has served as an admirable contrast because of the high quality and availability of federal defenders. Now this system is in peril. Federal defenders will not be able to take the time to visit clients in prison or search for facts that could raise doubts about clients' guilt.

Budget cuts hit every part of the federal government, as we know. Which is why the Department of Justice last week asked to hire an additional 100 lawyers next year over what they had this year.

As the Legal Times reports it,

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

For those of you keeping score at home, the federal public defender is laying off people - including at least one Federal Public Defender himself - furloughing others, and otherwise scrambling to deal with the 5% budget cut that went into effect in February. Meanwhile, DOJ is staffing up.

Apparently a change in tide does not affect all boats equally.

Should DOJ worry that they won't find enough harried, underpaid public defenders to be on the other side of the the cases that their fancy new prosecutors will be bringing?

And, with that, to the victories!

1155650_berlin_siegessule.jpg1.United States v. Fareri, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 105 months in prison, and ordered to pay restitution. Remand was required for the district court to correct the specific amounts owed to appellant's victims, as the list of payments due to each victim exceeded the amount identified in the court's oral pronouncement and written judgment. Though the district court's total restitution amount was binding, remand was required to reapportion the payments between victims. [Note - Matt Kaiser was trial counsel in this case.]

2. United States v. Grigsby, Sixth Circuit: The district court issued an order allowing the government to medicate appellant, a pretrial detainee diagnosed with paranoid schizophrenia, in an effort to restore appellant's mental competency so that he could be prosecuted on bank robbery charges. Because appellant's liberty interest in avoiding involuntary medication outweighed the government's interest in prosecution, the order was reversed and the case remanded for further proceedings.

3. United States v. Hinds, Eleventh Circuit: Appellant was convicted of conspiring to possess with intent to distribute crack cocaine and sentenced to a lengthy prison term. He was later resentenced to a reduced term of 120 months. The acts giving rise to the conviction occurred before the passage of the Fair Sentencing Act ("FSA"), though appellant was re-sentenced after the Act. The FSA raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. Because appellant was re-sentenced after the FSA was enacted, his sentence was vacated and the case remanded for resentencing.

March 4, 2013

Short Wins - It's a Relatively Good Week For The Constitution

It's a good week in the federal circuits for folks accused of a crime.

Instead of the all-too-common diet of sentencing remands, there are some nice wins on our rights against unreasonable searches and seizures and against uncounseled statements to law enforcement. Well done appellate counsel!

And, what week would be complete without an opinion on restitution in child pornography cases.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Black, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm after his motion to suppress the firearm was denied. Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search. For these reasons, the district court's ruling on the motion was reversed and appellant's conviction and sentence were vacated.

2. United States v. Gamble, Sixth Circuit: Appellants were convicted of two unrelated child pornography offenses and ordered to pay over $1 million in restitution to "Vicky," one of the people depicted in the images. Because the courts did not require a showing of proximate cause between Vicky's losses and the appellants' offenses, remand for that analysis was required. Furthermore, on remand, the lower courts must reconsider the extent to which appellants must pay restitution where they share responsibility for Vicky's injuries with hundreds of other child pornography viewers.

3. United States v. Ramirez, First Circuit: Appellant pled guilty to conspiracy to distribute and distribution of crack cocaine. He was sentenced to 13 years in prison. Because the record was unclear as to whether the court applied an enhancement for knowingly or intentionally using a minor person when committing the offenses, remand was required to resolve this question.

4. United States v. Hunter, Seventh Circuit: The district court properly granted appellant's motion to suppress statements he made to police after asking for his attorney. Because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

5. United States v. Bell, D.C. Circuit: Appellant was convicted of conspiring to possess and distribute PCP. He argued that his lawyer was ineffective because the lawyer didn't tell him that he could have received a lower sentence under the "safety valve" provision of the Guidelines. Appellant also said his lawyer was ineffective because the lawyer didn't request a continuance at the sentencing hearing when it became apparent that appellant didn't about the safety valve. Because the record suggested a serious possibility that the lawyer was ineffective and that this ineffectiveness prejudiced appellant, remand was proper to resolve this uncertainty.

6. United States v. Moore, Fourth Circuit: Appellant was convicted of carjacking, using a firearm in the carjacking, and conspiracy. Because the district court erred in denying appellant's motion for a new trial, which was based in part on newly discovered evidence that a picture of a potential suspect in the underlying offenses was mislabeled, his conviction was vacated and the case remanded for a new trial.

February 19, 2013

Short Wins - President's Day Edition

It's a scattershot collection of sentencing remands in this week's short wins.

Also, Happy Belated President's Day everyone, or, as OPM says, happy Washington's Birthday:

This holiday is designated as "Washington's Birthday" in section 6103(a) of title 5 of the United States Code, which is the law that specifies holidays for Federal employees. Though other institutions such as state and local governments and private businesses may use other names, it is our policy to always refer to holidays by the names designated in the law.

Used car dealers with their "President's Day Sales" may differ though.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Battle, Tenth Circuit: Appellant was convicted of conspiracy to possess with an intent to distribute 50 grams or more of crack. He was sentenced to 360 months in prison, and was later resentenced to 324 months after he filed a motion to reduce his sentence based on the retroactive amendment of the crack cocaine guidelines. The 324-month sentence was based in part on the court's finding that appellant was responsible for more than 3.4 kilograms of crack. Because the record did not support attributing this amount to appellant, the court reversed and remanded for resentencing.

2. United States v. Epps, D.C. Circuit: Appellant was convicted of various drug offenses under a Rule 11(c)(1)(C) plea agreement. He was sentenced to 188 months in prison followed by five years of supervised release. The court had jurisdiction to hear the appeal notwithstanding appellant's release from prison and the start of his supervised release. The appeal was not moot because appellant's term of supervised release may be impacted by the outcome of the appeal. Finally, appellant was entitled to a reduction of his sentence under the revised guidelines. For these reasons, the case was reversed and remanded.

3. United States v. May, Ninth Circuit: Appellants pled guilty to receipt of stolen mail and mail theft. The court's loss calculation included expenses the U.S. Postal Service ("USPS") incurred to avert future thefts. The court improperly ordered restitution for USPS' expenses because the mail theft of which the defendants were convicted occurred after, and could not have caused, USPS' delivery procedure change. As a result, the portion of the restitution order awarding restitution for USPS' expenses was vacated.

4. United States v. Patrick, Seventh Circuit: Appellant pled guilty to sex trafficking and was sentenced to 360 months in prison, to be served consecutive to a 20-year state court sentence appellant was serving. Because the court failed to discuss appellant's cooperation with authorities, appellant's sentence was vacated and the case remanded for further proceedings.

5. United States v. Capers, et al., Eleventh Circuit: Bishop Capers, Leon Frederick, and Larry Little were convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine. The court ruled that the Fair Sentencing Act, which reduced the guidelines ranges for the offenses at issue, did not apply to Mr. Capers and Mr. Little's sentencing guidelines calculations because their offenses were committed before the Act was passed. This was error. Consequently, Mr. Capers and Mr. Little's sentences were vacated and the case remanded for resentencing.

February 11, 2013

Short Wins - Resentencings Abound

It's been a big week for resentencings - especially in the Sixth and Seventh Circuits.

The DC Circuit came in with an important decision on the BOP's Inmate Financial Responsibility Program. The Ninth Circuit weighed in on supervised release conditions in a sex case.

Though, really, six opinions from our federal circuits last week and all of them involve a resentencing. It's a sad kind of winning.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Godoy, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 60 months in prison, and ordered to enroll in the Inmate Financial Responsibility Program. Because he could not be ordered to enroll in the program, his sentence was modified to reflect that enrollment was voluntary.

2. United States v. Preston, Ninth Circuit: Appellant was convicted of abusive sexual contact and sentenced to 50 months in prison and lifetime supervised release, subject to several conditions: (1) participating in plethysmograph testing; (2) prohibiting the possession/viewing of "any other material" of a sexual nature; and (3) prohibiting contact with or being "in the company of" children under 18. The court did not make specific factual findings before ordering the testing in condition (1). On remand, if the court again orders testing, factual findings must be made. Because condition (2)'s reference to "any other material" was too broad, remand for clarification on this point was warranted. Finally, remand on condition (3) was appropriate to add a mens rea requirement and for the court to explain its reasons for imposing the condition, given that it implicates significant liberty interests, or, if it cannot, to narrow the condition appropriately.

3. United States v. Deen, Sixth Circuit: Appellant was convicted of distributing crack and sentenced to 66 months in prison and four years of supervised release. After violating supervised release, he was sentenced to two years in prison to "give the Bureau of Prisons another chance to do some in-depth rehabilitation." Because the Sentencing Reform Act prohibits a court from imposing a sentence to enable a person to complete a treatment program or otherwise promote rehabilitation, the court erred in imposing a sentence based on appellant's rehabilitative needs. His sentence was vacated and the case remanded for resentencing.

4. United States v. Love, Seventh Circuit: Appellant was convicted of distributing and conspiring to distribute crack. Because he committed these offenses before the effective date of the Fair Sentencing Act, but was sentenced after, he was entitled to resentencing under the Act's less stringent crack provisions. Resentencing was also proper because the court incorrectly calculated the guidelines sentence. For these reasons, his sentence was vacated and the case remanded for resentencing.

5. United States v. Wren, Seventh Circuit: Appellants were convicted of crack offenses. They both had original Guideline ranges above the statutory floor and received sentences below that floor because of the substantial assistance they provided to the prosecutor. After they were sentenced, the Sentencing Commission made changes to the Guideline ranges for crack that would have permitted a reduction in their sentences. Because the court erred in ruling that appellants were prevented from receiving lower sentences under Guideline § 5G1.1, the case was remanded.

6. United States v. Macias-Farias, Sixth Circuit: Appellant was convicted of drug trafficking and sentenced to 320 months in prison. Because the court failed to make the findings necessary to enhance appellant's sentence for obstruction of justice under Guideline § 3C1.1, remand for resentencing was required.

November 14, 2012

The DC Circuit Vacates A Restitution Order In A Criminal Copyright Case - Or, Making Money Off Pirated Adobe Software Doesn't Necessarily Hurt Adobe As Much As It Helps The Person Making The Money

Gregory Fair was an internet entrepreneur. Of sorts.

Mr. Fair's Criminal Copyright Enterprise

He sold pirated copies of outdated Adobe software on Ebay. His customers could buy this outdated software, then, with an update code Mr. Fair was also able to provide, they could pay Adobe to upgrade their software to the most current version.

1335026_friendly_skull.jpgMr. Fair's customers would then pay, for example, $325 and a little bit of legwork for Adobe software that would cost more than $700 on the open market.

A deal like that sells itself, and over the course of six years his total sales came in around $1.4 million.

All good things must come to an end.

The Postal Service, after hearing complaints from Adobe, launched a sting. Mr. Fair was charged with a criminal copyright offense under 18 U.S.C. § 2319. He pled guilty.

Restitution Arguments at the Sentencing Hearing

Though the plea agreement contained a lot of concessions, it did not contain an agreement about any restitution amount.

Before sentencing, the government provided a spreadsheet of the amount of revenue that Mr. Fair made selling software as a part of his software enterprise. His total sales were $767,465.99. The government proposed that this would be an adequate measure of Adobe's loss for restitution purposes.

Mr. Fair disagreed. He argued that

(1) restitution under the MVRA must take the form of "actual loss" to the victim; (2) "actual loss cannot be equated to 'intended loss' or to gain by the defendant"; and (3) the government had offered "no proof . . . of any actual loss by [the victim,] Adobe Systems."

Moreover, in a move that may be genius or chutzpah, he argued that "his piracy might in fact have benefitted Adobe Systems by increasing consumers' awareness and use of its products."

A temperate man, he did not request payment from Adobe for his work as a part of the sentencing proceeding.

The district court agreed with the government. The district court reasoned that

"[i]t's undisputed that [Fair]'s revenue from the sales of pirated Adobe products was at least $767,000," and that "if anyone held the right to collect revenue from the sale of these products, it was Adobe [Systems]," and so it followed that "since the sales did occur and revenue was generated, and the right to the revenue was held by Adobe [Systems] and not by [Fair], that Adobe [Systems] has the right to be restored to the revenue that it lost [in] its right to collect on actual sales that were made."

Mr. Fair appealed.

Mr. Fair Goes To The D.C. Circuit

The D.C. Circuit, in United States v. Fair, reversed the restitution award.

About the district court's reasoning, the D.C. Circuit started by saying that just about no federal appellate court thinks the district court's approach is supported by the law.

The circuit courts of appeals are in general agreement that the defendant's gain is not an appropriate measure of the victim's actual loss in M[andatory Victim Restitution Act] calculations. See Zangari, 677 F.3d at 92-93 (2d Cir.); Arledge, 553 F.3d at 899 (5th Cir.); United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008); Chalupnik, 514 F.3d at 754 (8th Cir.); United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007); cf. United States v. Kuo, 620 F.3d 1158, 1164-65 (9th Cir. 2010); United States v. Harvey, 532 F.3d 326, 341 (4th Cir. 2008); United States v. Badaracco, 954 F.2d 928, 942-43 (3d Cir. 1992).

So the amount that Mr. Fair made on the sales of copyright-violating software isn't the right measure of what Adobe lost. Fair enough. What is?

Sometimes, in a criminal copyright case, the copyright violator puts things into the market that completely block the legitimate seller from selling at all.

For example, if I sell bootlegged copies of The Green Bag ("an entertaining journal of law") for a mere $35 a subscription per year, it would prevent The Green Bag from being sold for many consumers.

In a case like that, the D.C. Circuit said, the restitution owed to The Green Bag would be not the cost of its lost sales - so not $40 per subscription I sold - but rather The Green Bag's profits per subscription. Or, as the D.C. Circuit put it,

the actual loss to the displaced (authentic) seller is the profit lost from the displaced sales -- not the retail value of the goods that would have been sold.

Here, though, the government put on no such evidence of Adobe's lost profits

the government offered no evidence of either the number of sales that Adobe Systems likely lost as a result of Fair's scheme or the profit that Adobe Systems would have made on any such diverted sales. The record contains only a spreadsheet tallying Fair's eBay sales and unsubstantiated, generalized assertions of government counsel regarding Adobe Systems' lost sales. . . . There thus was no evidentiary basis on which the district court could find that had Fair's customers not purchased pirated Adobe software from him at a greatly reduced price, all or any portion of them would have purchased full-priced versions from Adobe Systems.

Moreover, to the extent that the government thought that it could simply use the guidelines infringement loss number as a restitution amount, the court of appeals slapped it down

To the extent the government defends the use of gross proceeds as "consistent with the calculation of loss under the Sentencing Guidelines," Appellee's Br. at 15, it ignores the different approaches in the Guidelines and the M[andatory Victims Restitution Act]. Essentially, the government blurs the line between the "infringement amount" calculated under Sentencing Guidelines § 2B5.3 in criminal copyright cases, which is derived by multiplying the retail value of the infringed or infringing items by the quantity of infringing items, and the restitution amount calculated under the MVRA, which must reflect the actual, provable loss suffered by the victim.

But that's not all, gentle readers.

No Second Bite on Remand

The government, perhaps seeing which way the wind was blowing, asked the D.C. Circuit to limit the damage. If we lose, the government asked, please at least remand for a new hearing on restitution.

The government wanted another bite at the apple.

The D.C. Circuit was having none of it.

No special circumstances are present that would warrant reopening the record on restitution in Fair's case. The government's burden to prove actual loss under the MVRA was well-established before sentencing. See also Tr. Oct. 22, 2009 at 23 (government counsel stating, "[w]e welcome the burden to prove restitution."). The government was allowed to present evidence . . . . Indeed, whether the government had offered evidence demonstrating actual loss was the central issue addressed during the parties' restitution discussion at the sentencing hearing.

Because the government already had a full and fair opportunity to prove that restitution was appropriate, and it failed to do so, the D.C. Circuit vacated the restitution award and denied the government another chance to meet its burden.

Fair enough.

November 12, 2012

Short Wins - It's a Good Week For Remands In Fraud Cases

It's a good week for reversals in fraud cases.

The Second Circuit sent two fraud cases back for resentencing, and vacated a conviction in its entirety! And they're cool issues -- for example, for the "mass marketing" enhancement under the fraud guidelines to apply, the government has to show not just that mass marketing happened, but that mass marketing happened to victims. A number of convictions were also vacated in a criminal tax prosecution, and the Second Circuit found a violation of the defendant's public trial right.

The D.C. Circuit entered the fraud remand fray, sending a criminal copyright case back because of errors in the restitution order.

Exciting stuff.

For those who are obsessive about extraterritorial criminal law (a growing number of folks, these days), the Eleventh Circuit vacated a few convictions for people convicted of violating U.S. drug trafficking laws for things they did in Panamanian waters.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bellaizac-Hurtado, Eleventh Circuit: As a result of observations by the United States Coast Guard in the territorial waters of Panama, four people were convicted in the United States of engaging in a drug trafficking conspiracy. Panama consented to prosecution in the United States. Because drug trafficking is not "an offense against the Law of Nations" under the Maritime Drug Law Enforcement Act, Congress exceeded its power under the Act's Offenses Clause when it proscribed the conduct in the territorial waters of Panama. Consequently, the Act is unconstitutional as applied to these four individuals and, as a result, the convictions were vacated.

2. United States v. Marquez, First Circuit: In crack cocaine distribution case, appellant was sentenced to 121 months in prison based on the district court's finding that he had acquired for distribution 304 grams of crack in two 152-gram allotments. Although it was not error to attribute the first 152-gram allotment to appellant, the court committed clear error in attributing the other 152-gram acquisition to appellant because there was no evidence to support the finding that the additional quantity was actually 152 grams. This secondary finding had a "dramatic leveraging effect," as it triggered a 120-month mandatory minimum. Consequently, appellant's sentence was vacated and the case remanded for resentencing.

3. United States v. Lacy, Henry, Second Circuit: In mortgage fraud case, the district court erred in applying a two-level enhancement to appellants' sentences for an offense "committed through mass-marketing" under Guideline § 2B1.1(b)(2)(A)(ii) without making sufficient findings to show that the targets of the mass-marketing scheme were also in some way victims of the scheme. Consequently, remand for additional findings was required. The court also failed to credit any of the value of the collateral in formulating its restitution orders, warranting remand for recalculation of the restitution amount.

4. United States v. Gyanbaah, et al., Second Circuit: Appellant was convicted of five offenses arising out of his participation in a fraudulent tax return scheme. Because there was insufficient evidence to convict him of bank fraud and aggravated identity theft related to the bank fraud, his convictions on these counts were vacated and the case remanded for resentencing.

5. United States v. Gupta, Second Circuit: In immigration fraud cause, appellant's sixth amendment right to a public trial was violated when the district court intentionally excluded the public from the courtroom during the entirety of jury selection without first considering the following factors: (1) the party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make findings adequate to support the closure. Consequently, appellant's conviction was vacated.

6. United States v. Fair, DC Circuit: In copyright infringement and mail fraud case, the district court erred in entering a restitution order against appellant because the government failed to meet its burden under the Mandatory Victim Restitution Act to present evidence from which the court could determine the victim's actual loss. Consequently, the restitution order was vacated.

7. United States v. Woodard, Tenth Circuit: Appellant's conviction for possession of more than 100 kilograms of marijuana with intent to distribute was reversed because there was a reasonable probability that the jury would have reached a different result had appellant been allowed to cross-examine a witness about a prior judicial determination that the witness was not credible.

October 25, 2012

D.C. Circuit Tells A District Judge, "You've Got The Power [To Impose A Sentence Lower Than The Guidelines Range]"

Pretty much every federal district judge in the country knows by now that the sentencing guidelines are not mandatory, the guidelines can't be presumed to be accurate, and that federal district court judges have authority to impose a sentence above, below, or within the sentencing guidelines, applying the factors set out in 18 U.S.C. § 3553(a).

1268685_washington_monument.jpgAnd so just about every federal district judge knows that if he or she says she's going to give a guidelines sentence, he or she has to also say it's the sentence that they'd give under § 3553(a).

It's odd, but in federal court it's very important that a judge knows what power he has, which is exemplified in the D.C. Circuit's opinion in United States v. Terrell. If a district judge is going to give a guidelines sentence, he or she has to be clear about whether a lower sentence is even possible.

Mr. Terrell had a crack (conviction) problem. He pled guilty to dealing a bit of crack and went to sentencing.

At sentencing, he asked the judge to give him less time than the sentencing guidelines called for. The guidelines in his case called for a sentence of 210 months on the low side (ok, perhaps it was more than "a bit" of crack).

The judge, though, told Mr. Terrell that he didn't think he could help him out. As the D.C. Circuit summarized it,

the court stated that it would sentence Terrell below the applicable Guidelines range only if it found "compelling reasons" to do so. See, e.g., Tr. 6/27/06, at 4:6-14 ("There would have to be compelling reasons for the Court not [to] impose an advisory guideline sentence."); id. at 7:8, 7:18-20 ("Now, I'm not so sure compelling reasons exist here. . . . [I]f you think there's a basis for the Court to impose something other than an advisory guideline sentence it's going to have to be for compelling reasons."); see also Tr. 8/4/05, at 4:16-18 ("In all likelihood, I'm going to follow the guidelines even though they're advisory. In all likelihood I'm going to do that."). The court explained that it had found "compelling reasons" to deviate from the Guidelines in only two prior sentencings. Tr. 6/27/06, at 4:6-14.

If there's one thing a federal appellate court doesn't like, it's being ignored. Just three months before Mr. Terrell's hearing, the D.C. Circuit had decided, in United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007), that a district court can't decide that the sentencing guidelines are presumptively reasonable - put another way, it can't say that it'll only go below the sentencing guidelines if it has compelling reasons.

For the district court to keep on applying a "compelling reasons" standard was, perhaps, a bit of a snub to the august appellate court.

As the court of appeals put it,

Even after we issued our decision in Pickett, the court indicated that it was continuing to apply its "compelling reasons" approach. See Tr. 3/27/07, at 10:2-3 ("The question becomes why shouldn't the Court impose a [within-Guidelines] sentence of 210 months? . . . I just can't think of any compelling reasons why I should not impose a sentence of 210 months.").

Because the district court was wrong about when it could go below the sentencing guidelines - employing a "compelling reasons" approach after the D.C. Circuit had already said that wasn't the law - the D.C. Circuit remanded because, "the [district] court took too narrow a view of its authority to deviate from the Guidelines"

Mr. Terrell will be resentenced.

October 22, 2012

Short Wins - The DC Circuit Has Two Criminal Reversals In One Week

The D.C. Circuit, normally an infrequent presence on this blog, has two cases in one week!

One involves Osama bin Laden's driver and his happy adventures with retroactivity. The was a remand for a judge who thought that a below guidelines sentence is only appropriate when there are "compelling reasons" to go below the guidelines range.

There's also go action in a Sixth Circuit meth case involving the Fourth Amendment, and a crime of violence case out of the Tenth Circuit.

Fire up those 28(j) templates - here are this week's Short Wins:

1155650_berlin_siegessule.jpg1. Consolidated Sixth Circuit Cases: United States v. Beals; United States v. Miller; United States v. Ambrose: In case arising out of an alleged methamphetamine manufacturing and distribution conspiracy, Pamela Miller, Leslie Beals, and Bobby Ambrose challenged their convictions for drug-related offenses. The Court dismissed Miller's appeal and affirmed Beals' convictions. The Court affirmed Mr. Ambrose's convictions but remanded for the district court to make findings on "unresolved matters" related to the execution of the search warrant, the fruits of which were presented at trial. The Court further ruled that, if the district court determines on remand that the officers exceeded the warrant's scope, it should determine whether blanket suppression of all of the evidence presented against Mr. Ambrose is warranted and, if so, how this affects his convictions and sentences.

2. United States v. Hamdan, DC Circuit: Salim Hamdan, an al Queda member who worked for Osama bin Laden, was convicted by a military commission for "material support for terrorism," a war crime specified by the Military Commissions Act of 2006, based on actions he took from 1996 to 2001 - before the enactment of the Military Commissions Act. Because the D.C. Circuit read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under the relevant statute that was on the books at the time of his conduct (10 U.S.C. § 821), the Court reversed the military commissions court's judgment and directed that Hamdan's conviction be vacated.

3. United States v. Joe, Tenth Circuit: In aggravated sexual abuse case, the district court erred when it enhanced the appellants' offense levels for physical restraint of the victim and use of force against the victim because it is impossible to commit aggravated sexual abuse without also applying force that constitutes physical restraint of the victim. Because this error was not harmless, the Tenth Circuit remanded the case to the district court for resentencing.

4. United States v. Terrell, D.C. Circuit: In possession with intent to distribute crack case, the district court committed plain error in sentencing appellant because it took too narrow a view of its authority to deviate from the Sentencing Guidelines. In particular, the Court stated that it would sentence appellant below the Guidelines only if it found "compelling reasons" to do so. This approach was forbidden before appellant's sentencing. Because this error affected appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, resentencing was warranted.

5. United States v. Duran, Tenth Circuit: The district court erred in applying a crime of violence sentencing enhancement when it sentenced appellant pursuant to his guilty plea to possession of a firearm by a convicted felon. Because appellant's prior conviction for aggravated assault can be committed with a mens rea no higher than recklessness under Texas law, the crime is not a crime of violence under U.S.S.G. § 4B1.2(a). As a result, the enhancement did not apply, and remand for resentencing was warranted.

6. United States v. Quinn, Seventh Circuit: In child pornography case, the district court erred in failing to explain its decision to sentence appellant to a lifetime of supervised release. The term of supervised release was vacated, and the case remanded for resentencing with instructions for the court to consider (1) how appellant's arguments that he has a lower-than-normal risk of recidivism affect the appropriate length of supervised release, (2) the interaction between the length and terms of supervised release, and (3) the possibility of setting sunset dates for some of the more onerous terms of supervised release.


September 14, 2012

Ineffective Assistance Of Counsel Claims Matter Even In Cases From Afghanistan, Says the DC Circuit

The war on terror[ism] is a massive new problem for society. And, of course, when there's a massive new problem for society, that ends up being a massive new problem for lawyers.

Despite the debate about whether or not to close the detention facility in Guantanamo Bay - both between Obama when he was a candidate and as President, and in society at large - and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.

The D.C. Circuit's opinion from last week in United States v. Mohammed is a nice example.

1124515_deserted_houses.jpgDon't Trust Just Anyone To Help With Your Missile-Buying

Mr. Mohammed lived in the village of Geratak in Afghanistan. If a man named Jaweed is to be believed, one day, Jaweed walked into Geratak and asked to speak with Mr. Mohammed.

Upon meeting Jaweed, Mr. Mohammed then invited Jaweed into his planning to attack a NATO airbase in Afghanistan. Specifically, Jaweed says that Mr. Mohammed asked him to get some missiles to use to attack the airbase.

As any federal criminal defense lawyer - or frequent viewer of The Wire - would suspect, Jaweed then went to law enforcement. Just like on The Wire, he went to the DEA, who were working in Afghanistan.

The DEA agents did what DEA agents do - they wired up Jaweed. Jaweed then recorded calls with Mr. Mohammed where he made some boasts about attacking the airfield.

Initially, the DEA decided they would give the missiles to Jaweed, and then arrest Mr. Mohammed as soon as Jaweed handed over the missiles. At some point, someone in the federal law enforcement community determined that handing missiles to a person in Afghanistan who has bragged about wanting to harm a NATO airbase - using missiles - is not a good idea.

A New Plan Is Hatched

If you only have a hammer, you only see nails. The DEA decided to arrest Mr. Mohammed for narcotics trafficking, instead of planning to attack the airbase.

Jaweed was instructed to talk to Mr. Mohammed about a friend of his looking for opium. Mr. Mohammed said he knew a guy who could get opium, and they talked about what Mr. Mohammed's commission for getting the two friends together would be. At one point, Mr. Mohammed said he'd use his commission to buy a car to transport the missiles to attack the airbase.

If there's anything the DEA knows how to do, it's a controlled buy. The opium deal went through and the agents got some good video of Mr. Mohammed handling opium.

The DEA did another deal - this time for heroin. During this deal, Jaweed told Mr. Mohammed that his friend was planning to send the heroin and opium to the U.S. Mr. Mohammed expressed pleasure at this idea - saying that their common goal was to "eliminate the infidels either by opium or by shooting".

Mr. Mohammed Is Arrested

The DEA arrested him in Afghanistan and drove him to a DEA base. He was given Miranda warnings and made a statement.

The D.C. Circuit noted that "[a]t no time [during the interview] did Mohammed ask for an attorney"

He was transferred to the United States and put on trial in the United States District Court for the District of Columbia.

The Trial

Mr. Mohammed moved to suppress his statement, but the district court said that he was Mirandized and had the consequences of giving a statement explained to him, so no dice.

The trial lasted four days. Jaweed testified for two of those days. Mr. Mohammed's lawyer called no witnesses and offered no evidence. He was convicted of narcoterrorism and given two life sentences.

Ineffective Assistance of Counsel

The D.C. Circuit is a good court to practice in for a number of reasons - one of which is that you can raise an ineffective assistance of counsel claim in your direct appeal.

In many other circuits around the country, if your lawyer messed up, and that affected what happened to you, you can't complain about that in the appeal - you have to wait until after the appeal and file a petition under 28 U.S.C. § 2255.

But not so in the District of Columbia. Here, if you can show that your lawyer was constitutionally ineffective from the record before the court on appeal, the D.C. Circuit will consider your claim.

It almost makes up for not being able to vote for a Senator.

Here, Mr. Mohammed said that he had a number of witnesses in Afghanistan that he wanted his lawyer to interview.

These witnesses, he said, could have shown that Jaweed was a liar who hated Mr. Mohammed and was out to get him. Since Jaweed was the star witness, if Mr. Mohammed could have found and brought over witnesses to say Jaweed was biased or a liar, it could have gone a long way in his trial.

As the D.C. Circuit said, Mr. Mohammed's lawyer "owed him a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." If he didn't try to contact witnesses - even ones in a remote village in Afghanistan - he may not have given Mr. Mohammed the legal representation the Constitution guarantees him.

Sadly, the rest of the details of the ineffective assistance are under seal.

And so, the case was remanded to the district court on the ineffective assistance claim.

August 29, 2012

The Government Convicts A Man In A Drug Conspiracy Case Without Evidence He Was Involved In A Drug Conspiracy And The DC Circuit Reverses


It's very fashionable these days for United States Attorney's Offices to bring large indictments charging many people with involvement in a drug conspiracy.

They almost always get convictions.

381260_conspiracy.jpgYet in the case of United States v. Gaskins, the D.C. Circuit - in an opinion written by a former federal prosecutor - ruled that the United States Attorney's Office indicted, and a jury convicted, a man for being a part of a drug conspiracy when no reasonable juror could have found that he was involved.

The government's case was pretty standard for a large drug conspiracy. They indicted 21 people, including Mr. Gaskins. The government had wiretaps. The government executed search warrants.

After the indictment, lots of people flipped and testified for the government. Many of them were working down from a mandatory life charge.

Again, in a drug case, this is pretty much par for the course.

Yet none of this evidence tied poor Mr. Gaskins to the conspiracy he was indicted for belonging to.

Here's how the D.C. Circuit described the government's best evidence based on a cooperator:

Briggs . . . testified that he was motivated to get his pending criminal cases resolved and to get out of jail. In January 2004, he entered into a plea agreement pursuant to which he was released to help the government obtain information regarding several suspects, including Gaskins. As a condition of release, he had to report to the FBI on a daily basis. Briggs testified that he had multiple contacts and conversations with Gaskins after he was released. Although he said that Gaskins helped him fill out job and housing applications, Briggs said that none of their interactions involved the subject of narcotics.

That Gaskins - helping a man get housing and a job. Still, not exactly Stringer Bell.

The government executed a search warrant at Mr. Gaskins' mother's house. As the D.C. Circuit said:

In addition, the government searched the apartment in southeast Washington where Gaskins lived with his mother. That search yielded neither drugs, nor records, nor any other evidence linking Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had expensive jewelry, clothes, cars, or homes -- as searches did uncover with respect to other conspirators. The government's only evidence was that Gaskins lived in his mother's modest apartment.

And of the wiretaps:

FBI Special Agent John Bevington testified that the government conducted four months of wiretaps, from February 17 to June 26, 2004, during which it intercepted more than 14,000 calls. Recordings of many calls were played to the jury. Bevington and Detective Hall testified that two signature traits of a narcotics conspiracy are using coded language and asking conspirators to go to a land line, both of which could be discerned in several of the recorded calls. None of the calls by other alleged conspirators mentioned drugs or drug transactions in connection with Gaskins, whether in clear or in coded language. No call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise, and he was never asked to go to a land line.

See - that land line thing from Pulp Fiction is real.

The jury, nonetheless found him guilty.

Actually, to be more specific, the jury eventually found Mr. Gaskins guilty. The narcotics conspiracy he was alleged to be involved in had four separate objectives. The jury first found that he was guilty of the conspiracy, but that the government hadn't proven that he was seeking any of the objectives of the conspiracy. The district court, rightly puzzled by this, sent the jury back to resolve the conflict (over Mr. Gaskins' objection). The jury, then, returned a guilty verdict, determining that Mr. Gaskins was involved in the drug conspiracy.

Because the D.C. Circuit resolved Mr. Gaskins case based on the sufficiency of the evidence, and not based on the trial court's handling of the odd verdict form, the court of appeals did not resolve the question of what the court should have done with the odd jury determination.

Mr. Gaskins was ultimately sentenced to 22 years. The D.C. Circuit ordered him released and the judgment of conviction vacated after oral argument.

Think about that. Your government sought 22 years for a guy who wasn't on a wire, who no snitch said was involved, and who - when they searched his house - had no evidence of drugs there.